{ "id": 4188110, "name": "GUILLERMO RIVERA, Worker-Appellant, v. FLINT ENERGY AND LIBERTY MUTUAL INSURANCE COMPANY, Employer/Insurer-Appellee", "name_abbreviation": "Rivera v. Flint Energy & Liberty Mutual Insurance", "decision_date": "2011-10-24", "docket_number": "Docket No. 30,020", "first_page": "54", "last_page": "58", "citations": [ { "type": "official", "cite": "2011-NMCA-119" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2003-NMCA-015", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15878 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/133/0133-01" ] }, { "cite": "36 F.3d 73", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10522354 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f3d/36/0073-01" ] }, { "cite": "2007-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692970 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0319-01" ] }, { "cite": "2007-NMCA-128", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692438 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0605-01" ] }, { "cite": "111 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715112 ], "weight": 12, "year": 1990, "pin_cites": [ { "page": "166-67" }, { "page": "255-56" }, { "page": "168" }, { "page": "257" }, { "page": "169" }, { "page": "258" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "169" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0165-01" ] }, { "cite": "2009-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243724 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0453-01" ] } ], "analysis": { "cardinality": 651, "char_count": 11537, "ocr_confidence": 0.816, "pagerank": { "raw": 6.360589685387119e-08, "percentile": 0.3899798791358106 }, "sha256": "b9e374c74bbc07488e2865b13abecfc088e539b354013abb00089b5a87c18e2f", "simhash": "1:ec61d59b194df656", "word_count": 1870 }, "last_updated": "2023-07-14T17:47:49.050081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "JONATHAN B. SUTIN, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "GUILLERMO RIVERA, Worker-Appellant, v. FLINT ENERGY AND LIBERTY MUTUAL INSURANCE COMPANY, Employer/Insurer-Appellee." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} Appellant Guillermo Rivera (Worker) appeals the decision of the Workers\u2019 Compensation Judge (WCJ) to apportion Worker\u2019s attorney fees equally between Worker and Appellee Flint Energy (collectively with its insurer, Appellee Liberty Mutual Insurance Company, Employer). Worker argues that the Workers\u2019 Compensation Act obligated Employer to pay Worker\u2019s attorney fees when he recovered more at trial than he had previously offered to take in settlement. Because we hold that Worker\u2019s settlement offer failed to comply with the statute on which Worker relies, we affirm.\nBACKGROUND\n{2} W orker was injured in the course and scope of his employment in 2004. Over the next five years, Worker litigated various issues related to his injury before the Workers\u2019 Compensation Administration. Following the Workers\u2019 Compensation Administration Director\u2019s issuance of a recommended resolution, Worker\u2019s attorney faxed a letter to Employer\u2019s attorneys in June 2009. The letter stated that \u201c[w]e would agree to settle as follows [,]\u201d and listed eight factors comprising a proposed settlement. The letter concluded, \u201c[pjlease review the information and offer I have given you and contact me.\u201d Employer did not accept Worker\u2019s offer.\n{3} Trial of Worker\u2019s claims took place in July 2009. The resulting compensation order awarded W orker benefits in excess of those his counsel had proposed in his letter to Employer. Worker then filed an application for attorney fees, seeking payment of all fees by Employer under NMSA 1978, Section 52-1 -54(F) (2003). That section allows a claimant who makes a pretrial settlement offer to recover attorney\u2019s fees, if the offer is (1) made pursuant to the statute, (2) for an amount less than is awarded at trial, and (3) rejected by the employer. The WCJ denied Worker\u2019s request for apportionment, finding that the letter did not \u201cprovide sufficient specificity or adhere sufficiently to the statute\u201d to trigger the statute\u2019s fee-shifting provisions. Accordingly, the judge apportioned Worker\u2019s attorney fees, in the amount of $16,500, equally between Worker and Employer. Worker now appeals the apportionment of his attorney fees.\nDISCUSSION\nStandard of Review\n{4} We review a WCJ\u2019s interpretation of a statute de novo. Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, \u00b6 14, 146 N.M. 453, 212 P.3d 341. We begin with the plain meaning ofthe statute\u2019s words and construe its provisions together to produce a harmonious whole. Id. Once we determine the meaning of the statute, we review the record to determine whether the findings and award are supported by substantial evidence. Id.\nWorker\u2019s Letter Failed to Comply With Section 52-l-54(F)\n{5} Section 52-l-54(F) provides that a litigant before the Workers\u2019 Compensation Administration \u201cmay serve upon the opposing party an offer to allow a compensation order to be taken against him.\u201d The statute further provides that, \u201cif the worker\u2019s offer was less than the amount awarded by the compensation order, the employer shall pay one hundred percent of the attorney fees to be paid the worker\u2019s attorney.\u201d Section 52-l-54(F)(4). Worlcer\u2019s attorney sent the letter at issue about a month before trial. The letter proposed that Employer accept the following eight values in resolution of the case:\n[Maximum medical improvement] date: August 18, 2006\nImpairment rating: 20%\nModifier points: 72\nTotal [permanent paitial disability] % rate: 92%\nPPD weekly $ rate. $386.46\nOverpayment through 6/24/09: $8,433.93\nOverpayment at $386.46/week: 21.82 weeks\nWeeks remaining from 6/24/09. 423.18 weeks\nThe letter was silent in regard to Section 52-1-54(F). It did not refer to the section, nor to any language in the section. It did not indicate that the offer was to allow a compensation order to be taken against Employer or to invoke the fee shifting provision in the Act. Employer rejected Worker\u2019s offer, and the case proceeded to trial. At trial, the W C J awarded W orlcer the following values for the first five of Worker\u2019s factors listed above:\n[Maximum medical improvement] date December 12, 2006\nImpairment rating: 20%\nModifier points: 79\nTotal [permanent partial disability] rating: 99%\nPPD weekly $ rate: $415.87\nThus, it is undisputed that Worker was awarded more at trial than his counsel had offered in his June 2009 letter. Worker argued below, and argues on appeal, that the letter was subject to Section 52-1-54(F). Accordingly, Worlcer argues the WC J erred by failing to require Employer to pay the entirety of Worker\u2019s attorney fees.\n{6} The issue on appeal is whether Worker\u2019s letter constitutes a valid \u201coffer to allow a compensation order to be taken against\u201d Employer. Id. Employer argues that the WC J was correct in finding that the letter did not adequately put Employer on notice that the letter was intended to trigger the fee-shifting provisions of Section 52-l-54(F). We agree.\n{7} Neither party cites authority construing the requirements of a Section 52-1 - 54(F) offer or otherwise involving the adequacy of a settlement offer to trigger the statute\u2019s fee-shifting provision. Although we have construed the requirements of Section 52-l-54(F) before, the issue raised is one of first impression. Both parties cite Naranjo v. Pauli, 111 N.M. 165, 803 P.2d 254 (Ct. App. 1990). The Naranjos sued the Paulis for losses they incurred in investments the Paulis had solicited from them. Id. at 166-67, 803 P.2d at 255-56. The Paulis argued that liability was barred by the Paulis\u2019 prior offer to repurchase the securities under NMSA 1978, Section 58-13-42(B) (repealed 1986), a section of the New Mexico Securities Act. Naranjo, 111 N.M. at 168, 803 P.2d at 257. This Court held that an offer sent by the Paulis to all their investors did not qualify as an \u201coffer to repurchase securities\u201d under the Securities Act and therefore could not protect the Paulis from suit. Id. As such, while it is useful by way of analogy, Naranjo provides only limited direct guidance in connection with the workers\u2019 compensation statute at issue here.\n{8} Naranjo is instructive on another level. In Naranjo, we based our decision on fundamental contract principles, which translate directly to our analysis under Section 52-l-54(F). See Naranjo, 111 N.M. at 169, 803 P.2d at 258. At its most basic level, this case concerns specifically what type of contract Worker sought. As we recognized in Naranjo, \u201c[i]n order to be legally operative and to create a power of acceptance, it is necessary that the offer shall contain all the terms of the contract to be made.\u201d Id. (internal quotation marks and citation omitted).\n{9} Here, Employer argues that the offer from Worker\u2019s counsel failed to apprise Employer that the offer was intended to be governed by Section 52-l-54(F), whether on its face or through the filing of a certificate of service with the Workers\u2019 Compensation Administration. Employer notes that the offer did not mention the statute or state that the offer it contained was valid only for the ten-day period the statute requires. The offer did not refer to the statute\u2019s fee-shifting provision. Also, while we note that the offer was clearly offering to settle the case, Employer observes that it did not state that accepting the offer would require Employer to have a compensation order entered against it. Employer could reasonably have concluded that accepting Worker\u2019s offer to \u201csettle\u201d the case would result in the simple dismissal of the action before the Workers\u2019 Compensation Administration, rather than the formal entry of an order that the statute requires. We conclude that the offer did not set forth any language that can support the type of agreement Worker claims he intended. Such an omission makes the offer ambiguous as to whether Worker proposed an offer of settlement or an offer of judgment. \u201cThis flaw in the offer represents a fatal error in the offer and therefore the offer must be deemed to be incomplete . . . [and] a nullity.\u201d Leonard v. Payday Professional, 2007-NMCA-128, \u00b6 23, 142 N.M. 605, 168 P.3d 177.\n{10} Because the offer failed to either reference Section 52-1-54(F) or to otherwise mention language in that section that would put Employer on notice that the offer was one to allow a compensation order to be taken against Employer, we hold that it was not a valid and effective offer that could invoke the fee shifting provision in the Act. Because the offer did not set forth any language indicating that it was an offer under Section 52-1-54(F), we hold that it was not a valid offer of such an agreement. See Naranjo, 111 N.M. at 169, 803 P.2d at 258. Accordingly, we hold that the WCJ did not err by apportioning Worker\u2019s attorney fees evenly between Worker and Employer.\n{11} We have previously analogized Section 52-l-54(F) to the Federal Rule of Civil Procedure 68, which itself is similar to our own Rule of Civil Procedure, Rule 1-068 NMRA. Baber v. Desert Sun Motors, 2007-NMCA-098, \u00b6 18, 142 N.M. 319, 164 P.3d 1018, (\u201cIn Lang v. Gates, 36 F.3d 73 (9th Cir. 1994), cited by Hise [v. City of Albuquerque, 2003-NMCA-015, 133 N.M. 133, 61 P.3d 842], the Ninth Circuit Court of Appeals noted that an offer of judgment under the Federal Rule of Civil Procedure 68, which is worded substantially similar to Section 52-1-54(F), has the principle purpose \u2018to encourage settlement and to avoid litigation.\u2019\u201d). Despite their similarities, this case demonstrates the difference between the rules.\n{12} Prior to 2003, Rule 1-068 mirrored Section 52-1-54(F) in that both required offers of judgment. The Rules Committee, however, amended Rule 68, expressing its belief that requiring \u201ca judgment be entered for the amount of the agreed-upon offer was a disincentive to some litigants to make offers\u201d because those litigants preferred to settle the dispute informally without an entry of judgment. Rule 68, Committee Commentary. The rule now titles the procedure an \u201cOffer of settlement\u201d to make explicit thatboth offers of judgment and offers of settlement are acceptable means of triggering the rule, even where the only judgment entered is one of dismissal. Section 52-l-54(F) has undergone no such change. The title remains in part, \u201coffer of judgment\u201d and its language requiring \u201ca compensation order to be taken\u201d remains good law. Thus, while the purpose of both the statute and rule remain similar \u2014 to promote and encourage settlement, the \u25a0 technical requirements of triggering the offer do not.\n{13} As guidance and clarification for the bench and bar, we are not suggesting that offers sufficient to allow fee-shifting need to follow any specific format to be effective. But at a minimum, if counsel\u2019s aim is to invoke the provisions of Section 52-1-54(F), the document conveying the offer must refer to the statute explicitly or address each of its material requirements, including that if the offer is accepted a judgment is to be entered against Employer.\nCONCLUSION\n{14} For the reasons stated herein, we affirm the WCJ\u2019s order awarding attorney fees.\n{15} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nJ. MILES HANISEE, Judge", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Richard J. Parmley, Jr. Farmington, NM for Appellant", "Allen, Shepherd, Lewis, Syra & Chapman, P.A. Kimberly A. Syra Darin A. Childers Albuquerque, NM for Appellee" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2011-NMCA-119\nFiling Date: October 24, 2011\nDocket No. 30,020\nGUILLERMO RIVERA, Worker-Appellant, v. FLINT ENERGY AND LIBERTY MUTUAL INSURANCE COMPANY, Employer/Insurer-Appellee.\nRichard J. Parmley, Jr. Farmington, NM for Appellant\nAllen, Shepherd, Lewis, Syra & Chapman, P.A. Kimberly A. Syra Darin A. Childers Albuquerque, NM for Appellee" }, "file_name": "0054-01", "first_page_order": 70, "last_page_order": 74 }